CMNT_TITLE

Maritime Labour Convention, 2006 (MLC, 2006) - Gibraltar

Other comments on C186

Direct Request

2021
2017

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The Committee notes the Government’s second and third reports on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, 2016 and 2018 entered into force for Gibraltar on 18 January 2017, 8 January 2019, and 26 December 2020, respectively. The Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article I of the Convention. General questions on application. Implementing measures. In its previous comment, the Committee noted that the Convention had been incorporated through the Gibraltar Merchant Shipping (Maritime Labour Convention) Regulations 2013 (hereinafter GMS (MLC) Regulations) and by a series of Maritime Labour Notices (hereinafter MLN), and requested the Government to clarify the legal status of the provisions of such Notices which did not seem to have a binding nature. In this regard, the Committee notes the Government’s indication that MLNs will be issued under an amending Act of Parliament, incorporating a new section, which would empower the Maritime Administrator to issue MLN, and that they are currently considering legislation with enforcement provisions. The Committee notes that the Gibraltar Merchant Shipping (Maritime Labour Convention) (Amendment) Regulations 2021, of 4 March 2021, amended Regulation 2(1) to include the definition of Maritime Labour Notice as “a notice issued under section 3A of the Gibraltar Merchant Shipping (Safety, etc.) Act, 1993.” While the current version of the Gibraltar Merchant Shipping (Safety, etc.) Act, 1993 does not include a section 3A, the Committee notes that Bill 07/21 of 4 March 2021 foresees the incorporation of a new section which empowers the Maritime Administrator to issue MLNs which will have force of law and be enforceable. The Committee takes note of this information and requests the Government to provide a copy of the amended legislation implementing the Convention once adopted.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee requested the Government to indicate if it has adopted any substantial equivalences as permitted under Article VI of the Convention, through which procedure and on which issues. The Committee takes note of the Government’s indication that no substantial equivalences have been adopted under regulation 3(6) of the Gibraltar Merchant Shipping (MLC) Regulations, 2013, which provides that, as respects a particular ship, or ships of a particular description, the Maritime Administrator may, in the circumstances set out in Article VI of the MLC, approve requirements which, when taken together with the conditions and limitations to which the approval is subject, the Maritime Administrator considers are substantially equivalent to requirements of these Regulations. The Committee also notes that MLN 041 of 14 August 2020 provides guidance on the procedure for applying for a substantial equivalence, including for the consideration of requests for ship-specific “substantial equivalences”. The Committee draws the Government’s attention to the fact that the concept of substantial equivalence is not a matter for administrative discretion but has to be decided by a Member on a horizontal basis – i.e. not on an ad hoc basis – following the requirements of Article VI, paragraphs 3 and 4. The Committee requests the Government to adopt the necessary measures to ensure that substantial equivalence measures are decided on a horizontal basis and in conformity with the requirements of the Convention.

Article VII. Consultations. The Committee previously requested the Government to indicate how it gives effect to the Convention’s requirements regarding consultations. The Committee notes the Government’s indication that Gibraltar undertakes any consultations with shipowner and seafarer representative organizations through the United Kingdom’s MLC Tripartite Working Group, as and when required to do so by the MLC, 2006. The Committee takes note of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, the Committee noted that section 8(g) of (MLN No. 003 sets out exceptions to the prohibition from carrying out hazardous work by young seafarers and requested the Government to amend its legislation to give full effect to Standard A1.1, paragraph 4 of the Convention. While noting that the Government once again refers to MLN No. 003 in its reply, the Committee notes that MLN No. 017(a) on Health and Safety Policies and Programmes, of 26 November 2020, specifies types of work prohibited to young persons (section 7.2, paragraph 2(a) to (c)), without exception. The Committee also notes that the Government has specified other types of work which could only be performed by young persons subject to the condition that the activity is performed under the supervision of a person experienced and trained in the task to be carried out and that it is an indispensable part of an established training programme leading to STCW qualifications (section 7.2 paragraph 2 d) to f) of MLN No. 017(a)). In addition, such types of work must be carried out in a way in which the young person’s health and safety is ensured, so far as is reasonably practicable, when performing the activity. Recalling that Standard A1.1, paragraph 4, requires the absolute prohibition for young seafarers of the types of work considered hazardous and allows for no exceptions, the Committee underscores the need to avoid any inconsistency in the applicable national provisions. The Committee therefore requests the Government to indicate the measures taken to repeal section 8 of MLN No. 003 to ensure full compliance with Standard A1.1, paragraph 4.

Regulation 1.4 and the Code. Recruitment and placement services. The Committee notes the Government’s indication that there are currently no recruitment and placement services operating in Gibraltar. The Committee requests the Government to provide information on any developments in this regard.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. The Committee notes with interest that MLN 007(a), of 26 November 2020, MLN 008(a) of August 2020 and section 19C of the Gibraltar Merchant Shipping (Maritime Labour Convention) (Amendment) Regulations 2021, have incorporated into the national legislation provisions for giving effect to the 2018 amendments to the MLC, 2006. The Committee also notes the government’s information that further implementing legislation is being considered in relation to the 2018 amendments to Standard A2.2 of the MLC, 2006. The Committee requests the Government to provide a copy of all relevant new legislation or other regulatory instruments implementing the Convention once they are adopted.

Regulation 2.3 and Standard A2.3, paragraph 13. Exceptions to the limits on hours of work and hours of rest. Noting that Regulation 15(3) of the GMS (MLC) Regulations allows exemptions to the limits of hours of work and hours of rest through collective agreement or “workforce agreement”, the Committee previously requested further information on this issue. The Committee notes the Government’s indication that no collective agreements permitting exceptions to the set limits have been registered. The Committee requests the Government to provide information on any developments in this regard.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes that under section 19B of the GMS (MLC) Regulations, as amended, the shipowners’ duty to repatriate ends, inter alia, when the shipowner makes reasonable arrangements for repatriation which are unsuccessful because of the seafarer’s unreasonable conduct (19B(b)); the shipowner has used reasonable endeavours to contact the seafarer for a period of three months or more, but has been unable to make such contact (19B(c)); the seafarer confirms in writing to the shipowner that repatriation is not required (19B(d)). The Committee recalls that the Convention does not provide that the right to repatriation ends when the circumstances provided under Standard A2.5.1, paragraph 1, are met. The only case in which this right may lapse in conformity with the Convention is contemplated under Guideline B2.5.1, paragraph 8, in the case in which the seafarers concerned do not claim that right within a reasonable period of time to be defined by national laws or regulations or collective agreements. The Committee requests the Government to ensure that any provision of national legislation which deprives seafarers of their right to repatriation, including section 19B of the GMS (MLC) Regulations, as amended is limited to the circumstances allowed by the Convention. It requests the Government to indicate how section 19B of the GMS (MLC) Regulations, as amended, is implemented in practice, specifying how the “seafarer’s unreasonable conduct” is determined and the standard of proof with regard to section 19B (b) and (c).

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee notes that section 19 of the GMS (MLC) Regulations, as amended, provides that a shipowner must not recover from the seafarer’s wages or other entitlements the cost of repatriation, unless the seafarer has been found, in accordance with (i) in the case of a seafarer on a ship other than an MLC ship, a determination by the Maritime Administrator, or (ii) in the case of a seafarer on an MLC ship, the relevant national laws, regulations or other measures, or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. The Committee requests the Government to provide information on the procedure to be followed and the standard of proof to be applied before any seafarer covered by the Convention can be found to be in “serious default of the seafarers’ employment obligations” (Standard A2.5.1, paragraph 3).

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In its previous comment, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes the Government’s indication that seafarers are provided with financial security in the event of abandonment pursuant to section 19(5) and (6) and Part VB (which covers sections 32K to 32T) of the GMS (MLC) Regulations, as amended. The Committee further notes that section 32L of the Regulations specifies the conditions under which a seafarer is considered abandoned. According to Sub-section 1B, paragraph 2, an abandoned seafarer ceases to be abandoned in relation to a ship if, after the end of the abandonment period, the seafarer continues, resumes or takes up new employment on board the ship or is engaged on board the ship. Paragraph 3 provides that the “abandonment period” ends, inter alia, in case of (b) the seafarer refusing unreasonably to be repatriated, or to cooperate with arrangements made for the seafarer’s repatriation; (c) the expiry of a period of 3 months during which the abandonment security provider has used reasonable endeavours to contact the seafarer but has been unable to make such contact; (d) the abandonment security provider receiving written confirmation from the seafarer that financial assistance is no longer required. The Committee recalls that the Convention does not limit the abandonment period during which seafarers should benefit from the assistance of an expeditious and effective financial security system. For the purposes of Standard A2.5.2, paragraph 2, seafarers shall be deemed to have been abandoned where the shipowner fails to cover the cost of the seafarer’s repatriation, has left the seafarer without the necessary maintenance and support or has otherwise unilaterally severed ties with the seafarer, including failure to pay contractual wages for a period of at least two months. In those circumstances, with the exception of outstanding wages and other entitlements due under the employment agreement, the relevant collective bargaining agreement or the national law of the state, which may be limited to four months, the assistance provided by the financial security system must be sufficient to cover the expenses, the essential needs of abandoned seafarers and the cost of repatriation until arrival at the seafarer’s home, as prescribed in Standard A2.5.2, paragraphs 9 and 10. The Committee therefore requests the Government to adopt the necessary measures to ensure that seafarers are entitled to the assistance provided by the financial security system in all the circumstances set out by Standard A2.5.2 paragraph 2 and until their arrival at home as required by Standard A2.5.2 paragraphs 9 and 10.

Regulation 2.6 and the Code. Seafarer compensation for the ship’s loss or foundering. Recalling that a restriction of the type indicated under section 21(2) of the Gibraltar Merchant Shipping (Safety, etc.) Act, 1993, is not provided for under Standard A2.6 and, noting the existence of conflicting provisions on this issue, the Committee previously requested the Government to amend the said Act in order to fully comply with the requirements of the Convention. The Committee notes the Government’s indication that it intends to repeal section 21(2) of the Gibraltar Merchant Shipping (Safety, etc.) Act 1993. The Committee once again requests the Government to adopt the necessary measures in order to ensure that full effect is given to the Convention and to provide copy of any amendment to the Act once adopted.

Regulation 2.7 and the Code. Manning levels. The Committee previously requested the Government to clarify whether all ships covered by the Convention that fly its flag have safe manning levels which are determined or approved by the competent authority, and how such manning levels are determined according to tonnage. The Committee notes the Government’s detailed information which confirms that the requirements of Regulation 2.7 apply to all ships, regardless of tonnage. The Committee takes note of this information, which addresses its previous request.

Regulation 4.2 and Standard A4.2.1, paragraph 1(d). Cost of burial expenses. Noting the existence of conflicting provisions resulting in the possibility to deduct expenses incurred by the shipowner in respect of illness and burial of any seafarer from the wages of the seafarer, the Committee had requested the Government to amend section 49(5) of the Merchant Shipping Act No. 1935-09 of 1935. The Committee notes the Government’s reply that it intends to amend such provision by repealing it. The Committee requests the Government to indicate the measures taken to give effect to Standard A4.2.1, paragraph 1(d) of the Convention and to provide a copy of the amended section once adopted.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee had requested the Government to provide information on the implementation of Standards A4.2.1 and A4.2.2. The Committee notes that according to sections 29(3) and 32C of the GMS (MLC) Regulations, as amended, the shipowner must have in force a contract of insurance or other form of security relating to a ship to ensure any liabilities the shipowner may have in the event of death or long term disability of seafarers arising from occupational injury, illness or hazard. The Committee also notes that sections 32B and 32H of said Regulations provide that the financial security shall not cease to operate before the end of the period of its validity unless its provider has given prior notice, in writing, of at least 30 days to the Minister. Section 32I provides that if a shipowner’s security is terminated, the financial security provider must give notice in writing to that effect to the Minister within a period of 30 days. The Committee notes however that section 32J allows the shipowner to notify seafarers that the financial security is to be or has already been terminated before the end of its period of validity. Recalling that, under Standard A4.2.1, paragraph 9 of the Convention seafarers must receive prior notification when the shipowner’s financial security is to be terminated, the Committee requests the Government to indicate the measures adopted so that national laws and regulations are in compliance with this requirement of the Convention.

The Committee further notes that section 32D(3A) of the GMS (MLC) Regulations, as amended reproduces the content of Standard A4.2.1, paragraph 8 of the Convention. For the purpose of section 32D, “claim for contractual compensation” means a claim for compensation in the event of death or long-term disability of a seafarer arising from occupational illness or hazard where the compensation payable in respect of the claim is set out in the seafarer’s employment agreement, and “contractual compensation” is to be construed accordingly. The Committee notes, however, that section 32E requires that evidence that the seafarer is suffering hardship must be provided as one of the conditions for entitlement to interim payments, and that the amount of the interim payments should be sufficient to alleviate the seafarer’s hardship. The Committee also notes that, with regard to the implementation of Standard A4.2.2, the Government refers generically to Part VA of the GMS (MLC) Regulations, as amended. The Committee requests the Government to provide more detailed information on how it gives application to the requirements of Standard A4.2.1, paragraph 8(d), to ensure that interim payments are made to the seafarer so as to avoid undue hardship as well as on the arrangements to settle claims relating to death or long term disability of seafarers due to an occupational injury, illness or hazard in cases where the compensation payable in respect of the claim is not set out in the seafarer’s employment agreement (Standard A4.2.2, paragraph 3).

Regulation 4.5 and Standard A4.5, paragraphs 1 and 2. Social security. Branches. The Committee previously requested the Government to provide information on the branches of social security for which protection is provided, particularly those for which it acquired an international obligation in accordance with Standard A4.5, paragraphs 2 and 10 (employment injury benefit, invalidity benefit and survivors’ benefit), specifying how benefits relating to medical care are afforded to seafarers when they are abroad. The Government indicates that according to section 10 of the Social Security (Employment Injuries Insurance Act) 1952, where an insured person suffers injury at work being in a insurable employment, then injury benefit, disablement benefit and death benefit may be payable. The Committee notes that, according to section 10(3) relating to insured persons on ships, vessels and aircraft, benefit shall not be payable in respect of an accident happening while the insured person is outside Gibraltar. The Committee also notes that, while such Act provides insurance against being unable to work, being disabled or losing life because of an accident at work or certain industrial diseases, the Government does not indicate how it provides for invalidity benefit and survivors benefit for seafarers in cases where death or invalidity would arise from a circumstance other than an occupational accident, injury or disease. The Committee further notes that, according to the Government, there are currently less than ten seafarers resident in Gibraltar. The Committee requests the Government to indicate how it intends to give effect to its obligations under the Regulation 4.5 and Standard A4.5 regarding invalidity benefit and survivors benefit.

The Committee notes the Government’s reference to sections 28-32 of the GMS (MLC) Regulations, as amended, regarding the provision for medical care on board ship and ashore. The Committee notes that section 32 on social security applies to persons who are domiciled or resident in Gibraltar and employed on board a ship, as well as to persons who work on board Gibraltar ships, including when they are not ordinarily resident in Gibraltar or European Union (EU) nationals and do not otherwise have access to social security provision or to medical care when in Gibraltar which satisfies the requirements of the MLC, 2006. According to section 32(2), a person who is employed on board a Gibraltar ship must be treated as being in Insurable Employment for the purposes of the Social Security (Employment Injuries Insurance) Act. The Committee also notes there are currently 3857 seafarers working on national flag ships covered by the Convention and that according to section 32(6) of the GMS (MLC) Regulations, as amended, the Minister may make determination extending the application of Gibraltar legislation in order to progressively achieve comprehensive social security protection for seafarers who are domiciled or resident in Gibraltar and for seafarers on Gibraltar ships. The Committee recalls that, in order to complement the protection afforded under Regulations 4.1 and 4.2, Guideline B4.5, paragraph 1 provides that the protection to be provided at the time of ratification should at least include the branches of medical care, sickness benefit and employment injury benefit. Noting that medical care and sickness benefit are not included in the list of social security branches specified, the Committee invites the Government to give due consideration to the Guideline B4.5, paragraph 1, according to which the protection to be provided at the time of ratification of the Convention should at least include the branches of medical care, sickness benefit and employment injury benefit.

Regulation 4.5 and Standard A4.5, paragraph 8. Social security. Bilateral or multilateral agreements. The Committee previously requested the Government to indicate the measures taken or envisaged to participate in any bilateral or multilateral arrangements regarding the provision of social security protection for seafarers, including the maintenance of rights acquired or in the course of acquisition. The Government refers to the Social Security Coordination (Regulation (EC) No 883/2004, EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019, which addresses the issues concerning social security coordination arising from the withdrawal of Gibraltar from the EU. The Committee takes note of this information, which addresses its previous request. The Committee requests the Government to provide information should any developments occur in this regard and, if applicable, to provide copies of any bilateral or multilateral arrangements regarding the provision of social security protection for seafarers.

Regulation 5.1.6. Marine casualties. The Committee notes that, under Regulation 10 of the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, whenever a “very serious casualty” occurs, the Marine Accident Investigation Compliance Officer (MAICO) must ensure that a safety investigation is carried out. In the case of a “serious casualty”, the MAICO carries out a preliminary assessment in order to decide whether or not a safety investigation should be undertaken and in the case of any other marine casualty or incident it shall decide whether or not a safety investigation should be undertaken. The Committee notes that in the latter cases the holding of an investigation is optional. It recalls that Regulation 5.1.6, paragraphs 1 and 2, provides that each Member shall hold an official inquiry into any serious marine casualty, leading not only to loss of life but also to injury that involves a ship that flies its flag. The Committee requests the Government to indicate the measures taken to ensure full conformity with this requirement of the Convention.

Regulation 5.2.2 and Standard A5.2.2. On-shore complaint-handling procedures. The Committee previously requested the Government to provide information on procedures established for seafarers calling at its ports to report a complaint alleging breach of the requirements of the MLC, 2006, as well as on the number of reported on-shore complaints. The Committee notes that the Government refers to (MLN No. 023(b), of July 2020, relating to on shore complaint procedures, which provides guidance to owners, operators and seafarers on the Gibraltar provisions on the Gibraltar Maritime Authority (GMA)’s handling of complaints made to the GMA relating to the MLC, 2006. The Committee takes note of this information, which addresses its previous request.